What does NEC4 clause 60.1(19) mean?
It is the prevention event: something neither side could prevent, too unlikely to allow for, that stops you completing and fits no other compensation event.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
The answer
It is the hardest clause in the list to meet. It has four conditions, and each must be shown. First, the event stops you completing the whole of the works, or completing them by the date on the Accepted Programme. Stops means stops. An event that only makes the work slower or dearer does not count. Second, neither party could prevent it. That rules out anything within either side's control, including their suppliers. Third, an experienced contractor would have judged at the Contract Date that it was so unlikely that allowing for it was unreasonable. This is the same test as for physical conditions under clause 60.1(12), and a risk known at signing fails it. Fourth, it is not one of the other compensation events. Notify under clause 61.3 within 8 weeks of becoming aware it has happened. Give an early warning under clause 15.1 the moment it is foreseeable. Where an experienced contractor could have warned, clauses 61.5 and 63 require the event to be assessed as if a warning had been given. The change to the Prices, your contract price, is assessed under clause 63.1. It is the effect on actual Defined Cost up to the notification and forecast Defined Cost after it, plus the Fee. That generally means standing resources, protecting the works and remobilising. Two things go wrong most. You notify a general disruption, such as a supply shortage that made materials dearer, when nothing stopped completion. Or you cannot show the event was unforeseeable at the Contract Date. Any delay to the Completion Date is assessed separately under clause 63, and that is a job for your planner.
Example
Illustrative example. The scenario and figures are invented.
The facts
A bridge deck subcontractor's only access to the Site is one public road. A gas main outside the Site bursts, and the highway authority closes the road to all but emergency traffic for 18 days while the main is replaced.
What happens
- No deliveries, plant or crews can reach the deck in that time, and the work stops.
- The event is tested against the other clauses. The burst is outside the Site, so clause 60.1(12) does not apply, and it is not weather.
- Nor is it an act of the main contractor or Others on the Site, and neither party could have prevented it.
- The subcontractor gives an early warning on the day of the closure, notifies a compensation event under clause 61.3, and records the closure order.
- The quotation assesses the standing crews, the hired formwork and the crane kept through the closure at £24,300 of Defined Cost, under clause 63.1.
The outcome
The quotation goes in at £24,300 of Defined Cost with the Fee added at the Contract Data percentage.
To have a refused event tested against the clause it falls under and pressed to implementation, see our Compensation Event Claim service.